Estate Planning Newsletter

Designating Another to Make Health Care Decisions

A power of attorney is a document that authorizes one or more individuals (collectively referred to as the “agent” or “attorney-in-fact”) to act on behalf of the person executing the document (the “principal”). There are two basic types of powers of attorney; financial powers of attorney, which authorize the agent to act with respect to financial matters, and health care powers of attorney (HCPOA), which authorize the agent to make decisions related to the principal’s health care. This article focuses on the HCPOA.

Specific State Statutes

The effect and degree of authority granted to an agent vary depending on the jurisdiction and the actual provisions of the HCPOA. Further, although many states refer to such instruments as “HCPOAs,” others do not. For instance, New York refers to them as “health care proxies,” while Texas uses the phrase “medical power of attorney.” California now recognizes the Advance Health Care Directive, which is document incorporating provisions of an HCPOA and a living will.

Despite the variations in name and substance, certain HCPOA regulations are common in most jurisdictions. These include age requirements for agents and principals (requiring both agents and principals to be adults), and specifying the qualifications required to act as an agent. Some states also impose restrictions on who may serve as a health care agent; in California, certain health care providers, such as doctors and nurses, are generally not permitted to act as agent unless they are related to the principal. In addition, strict formalities often regulate formation, revocation and other issues in connection with the instrument. The following examines some of these distinctions in Texas, New York and California.

Execution

Similar to the execution of testamentary instruments, HCPOAs must be executed in accordance with specific formalities as provided by state statutes. Such formalities often include specific requirements with respect to circumstances surrounding the signing of the instrument, such as the requirement that the principal be competent at the time of the signing.

All three states, Texas, New York and California, require principals to sign the instrument; however, at the principal’s request, others may sign the HCPOA in behalf of the principal at the direction of, and in the presence of, the principal. All three states also require that at least two witnesses sign the instrument. Most states require witnesses to meet specific criteria relating to capacity and impartiality. In California, a notary public’s acknowledgment may be used in lieu of the two-witness requirement.

Some states impose additional witnessing requirements where the principal is a patient in a care facility. This additional witnessing requirement is designed to ensure that the principal understands the document and is not signing under duress. In California, for example, if the principal is a patient in a care facility, the signature of the “patient advocate” or “patient ombudsman” is also required.

Revocation

Principals may generally revoke the effectiveness of an HCPOA at any time provided they have the capacity and intent to do so. In New York and Texas, principals may do this by informing their agent or health care provider orally or in writing. The relevant California statute employs similar language, but with respect to specifically revoking the designation of an agent, California requires the principal to document this intent in a signed writing or “personally [inform] the supervising health care provider.” As a general rule, the HCPOA is considered revoked when the principal dies or a subsequent instrument is executed. In some states, such as California, the agent’s authority may continue briefly beyond the death of the principal in order to direct an autopsy or address burial issues.

Protections to the Principal When the HCPOA Becomes Effective

The principal still retains the right to participate in health care decisions and to object to medical treatment and procedures. For instance, in California, if after the HCPOA has become effective, the principal objects to a decision of the agent, the agent’s decision will not be followed by the health care provider. Similarly, in New York, where a principal objects to a determination of capacity or an agent’s health care decision, “the principal’s objection or decision shall prevail unless the principal is determined by a court of competent jurisdiction to lack capacity to make health care decisions.” The relevant Texas statute gives priority of a principal over an agent, regardless as to the effect of the medical power of attorney or the principal’s lack of competence.

Other protections include regulations requiring the agent to be reasonably informed prior to making decisions. For instance, New York requires agents to consult with “a licensed physician, registered nurse, licensed clinical psychologist or certified social worker…” before making decisions. Many statutes also require the agent to consider the principal’s best interests, along with the principal’s moral and religious convictions.

Federal Laws Affecting HCPOAs

The federal government has enacted several laws affecting the use of HCPOAs. The Federal Patient Self-Determination Act (effective in 1991) requires Medicare and Medicaid providers to inform entering adults of certain rights under applicable state laws governing “advance care” directives such as HCPOA’s. These include the right to direct health care decisions. The Act also requires such providers to inform patients regarding advance directives such as HCPOAs and provider policies governing such rights.

The Health Insurance Portability Accountability Act of 1996 (HIPAA) became effective in 2003 and requires “covered entities,” i.e., health care providers, to adhere to strict rules regarding the disclosure of “protected health information.” HIPAA specifically authorizes disclosure of protected health information to an individual’s “personal representative,” including the health care agent. However, health care providers may ignore the agent’s designation as agent if there is a reasonable belief that doing so would harm the principal or otherwise not be in the principal’s best interest. Such decisions may be based on evidence of abuse, neglect, or potential harm. In making this determination, covered entities must exercise “professional judgment.”

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